Barry v. Anderson, No. 16,416

No. 16,416 | Neb. | May 23, 1911

Letton, J.

The plaintiff, who is an attorney at law, began this action against the defendant to recover the sum of f 200 for legal services. The defendant answered substantially that in 1897 he employed the plaintiff to foreclose certain tax certificates and procure him a good title to a certain tract of land; that plaintiff instituted an action for this purpose, which was prosecuted to final judgment, and afterwards advised him that the title procured was a good and merchantable title; that he paid plaintiff for the services, and, relying on this advice, he sold the land; that the title was afterwards attacked in two certain civil actions, which were the identical actions for which the plaintiff claims payment in this suit, and that plaintiff agreed to act for him in these suits for a nominal charge. He also pleads payment. The reply is virtually a general denial.

The real controversy is whether or not the plaintiff agreed to appear and assist in the defense of the two cases attacking the title for a mere nominal fee, as the defendant testified. The court instructed the jury that, if they found from the evidence that the parties agreed that the plaintiff should render his services for a merely nominal sum, and further believed that the sum of $25, admitted to be paid by the defendant to plaintiff, was in full payment for such charge, then they should find for the defendant; . that if, on the other hand, they did not find from the evidence that the contract or agreement was made as claimed by the defendant, then they should determine from the evidence what was a reasonable compensation for the services rendered, and render their verdict for that sum. not exceeding $200. The jury found for the plaintiff, and assessed his recovery at the sum of $75.

The principal error assigned is that the court erred in excluding the original files of the tax foreclosure case begun in 1897, in which the plaintiff acted as defendant’s attorney. Defendant argues that these exhibits show that this action was unadvisedly brought, and that the title to the premises procured thereby was defective; the object being to corroborate defendant’s testimony by giving a reason for plaintiff agreeing to act for a nominal sum. We think it sufficiently appears from the evidence that the defense of the two actions in which the plaintiff appeared was necessitated by the inconclusive character of the proceedings in the original case, but we fail to see how the. defense has in anywise been prejudiced by the exclusion of these exhibits. The controversy is not as -to whether the plaintiff was morally bound to appear gratuitously in the latter cases, but it is as to whether or not he did agree to appear and defend for a mere nominal sum. This was a question of fact, Avliich depends upon the Aveiglit to be given the testimony. Plaintiff testified that he agreed to serve for a reasonable fee. The proof on his part estimated the value of the services to be from $400 to $1,000 for both cases. Defendant testified that he told plaintiff that, if he had conducted the first case properly, the trouble would not have arisen, and that he (defendant) really ought not to pay anything.. “He said he must have a little, and T says, ‘well, it must be mighty little’ ” — and that plaintiff then seemed to be satisfied. This dispute is the gist of the case.

The excluded evidence was collateral. Perhaps it may have a remote bearing upon the issues involved, but we think that it would throw so little light upon them that it was within the discretion of the court as to whether it should be admitted or not. We have repeatedly said: “The receipt or.rejection of collateral evidence is largely within the discretion of the trial judge, and his rulings in that Regard will rarely be disturbed.” Young v. Kinney, 85 Neb. 131" court="Neb." date_filed="1909-09-25" href="https://app.midpage.ai/document/young-v-kinney-6658728?utm_source=webapp" opinion_id="6658728">85 Neb. 131; Fitch v. Martin, 84 Neb. 745" court="Neb." date_filed="1909-06-25" href="https://app.midpage.ai/document/fitch-v-martin-6658670?utm_source=webapp" opinion_id="6658670">84 Neb. 745; Peterson v. Andrews, 88 Neb. 136" court="Neb." date_filed="1910-12-10" href="https://app.midpage.ai/document/peterson-v-andrews-6659438?utm_source=webapp" opinion_id="6659438">88 Neb. 136. This doctrine is settled in this court.

The judgment of the district court is therefore

Affirmed.